QAZI MUHAMMAD FAROOQ, J.---Through this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the petitioner Mrs. Waheeda Ghafoor has questioned the validity of the decision of the Syndicate, University of Peshawar, embodied in Letter No. 1166/EC-III/Estt. Dated 19-1-1995 of the Registrar, University of Peshawar, whereby her appointment as Professor in the Department of Urdu, University of Peshawar has been set at naught and has prayed that it be declared as without lawful authority and of no legal effect.
2. Put shortly, the case of the petitioner as set up in the petition is that a permanent post of Professor in the Department of Urdu, University of Peshawar vacated by Dr. A.S. Johar Paracha on his retirement was advertised on 8-10-1993 by the Registrar, University of Peshawar. The petitioner being qualified in terms of the advertisement applied for the post in accordance with the prescribed procedure. Her application was duly processed and sent to the Selection Board, University of Peshawar. In the meantime a post of Professor from the Department of Persian was transferred to the Department of Urdu vide office order, dated 26-2-1994. She was called for interview in the month of April, 1994 and after the interview was selected by the Selection Board and recommended for appointment as Professor in the Department of Urdu against the post transferred from the Department of Persian. The recommendation was approved by the Syndicate as a result of which a formal office order was issued by the Registrar, University of Peshawar in regard to her appointment with effect from 25-6-1994 and the charge of the post was duly assumed by her. However, after seven months of her appointment she received a letter dated 19-1- 1995 from the Registrar, University of Peshawar to the following effect--- "I am directed to inform you that unfortunately your adjustment against higher post was subject to the final approval of the Syndicate which was turned down/withdrawn in the last meeting of the Syndicate, In principle all adjustments were turned down by the Syndicate. The syndicate has further decided that all adjustment cases will be reconsidered by the Selection Board in light of the prescribed rules and regulation. "
The letter of the Registrar as well as the decision of the syndicate reflected therein were liable to be struck down because the same were not only tainted with mala fide but were also without lawful authority and of no legal effect for the reason that she was not adjusted against any post but was appointed against a vacant post on merit on the recommendation of the Selection Board which was approved by the Syndicate.
3. The viewpoint of the respondents as highlighted in their comments is that the Selection Board had not recommended the petitioner for appointment against the advertised post and had only given her name as a second choice besides the principal candidate and as such she was adjusted against the second post. That the post against which the petitioner was adjusted was not advertised in accordance with the prescribed procedure, therefore, the syndicate in its meeting held on 26-10-1994 had referred all the cases of adjustments back to the Selection Board and subsequently in its meeting held on 25-1-1995 had decided that the newly transferred posts shall be duly advertised.
4. It was contended by the learned counsel for the petitioner that the petitioner's case was not a case of adjustment as at the time of her interview two vacant posts of Professor were available in the Department of Urdu and she was selected and recommended by the Selection Board for appointment against the vacant post transferred from the Department of Persian and the Syndicate being the appointing authority had approved the recommendation in its 345th meeting held on 25-6-1994. It was further argued that the Syndicate after approving the recommendation of the Selection Board had become functus officio and as suck: was not competent to recall its own. Decision. It was further contended that vested right to hold that post in question had accrued to the petitioner as she had served against it for seven months.
5. The learned counsel for the respondents on the other hand contended that the appointment of the petitioner was a case of adjustment pure and simple because the Selection Board had not recommended her for appointment against any post of Professor in the Department of Urdu. He further argued that appointment of the petitioner was not made in accordance with the rules and the prescribed procedure and as such was rightly set aside by the Syndicate. He, however, conceded at the fag-end of his arguments that the appointment of the petitioner would be in order if made on the recommendation of the Selection Board.
6. After giving the contentions raised at the Bar our anxious consideration and going through the minutes of the 345th Meeting of the Syndicate, University of Peshawar held oil 25th June. 1994 we have come to the conclusion that the impugned decision of the Syndicate vis-a-vis the petitioner and the impugned order of the Registrar, University of Peshawar are not sustainable for reasons that are not far to seek.
7. It is true that only one vacant post of Professor in the Department of Urdu was advertised but the minutes of the 345th Meeting of the Syndicate, University of Peshawar held on 25th June, 1994 make it manifest that on the recommendations of the Selection Board Mrs. Munawar Rauf was appointed against the advertised post and the petitioner was appointed against the post transferred from the Department of Persian vide University of Peshawar Office Order No.357, dated 26-2-1994 which reads as follows:--- "In the light of the powers delegated by the Syndicate in its meeting held on 9-12-1980, the Vice- Chancellor has been pleased to transfer the following posts from one department to another department of the Faculty of Oriental Languages, as mutually agreed by the concerned heads of the departments in a meeting of the Faculty of Oriental Languages with the Vice-Chancellor held on 8-1-1994.
(1) One vacant post of Assistant Professor from Persian Department to the Department of Pashto.
(2) One vacant post of Professor in Persian Department to the Department of Urdu and the resultant vacant post of Associate Professor from the Department of Urdu to the Department of Persian.
(3) One vacant post of Associate Professor from Persian Department to the Department of Pashto and the resultant vacant post of Associate Professor from the Department of Pashto to the Department of Persian.
REGISTRAR, UNIVERSITY OF PESHAWAR "
8. The decision of the Syndicate in regard to the appointment of the petitioner was implemented through Officer Order No.1134/Estt. Dated 3-8-1994 which is worded thus:--- "On the recommendation of Selection Board made in its meetings held on 27-3-1994, 3-4-1994 and 4-6-1994, the Syndicate in its meeting held on 25-6-1994 approved the appointment of the following as Professors in BPS-20 (Rs.9195--440--13595), plus usual allowances admissible under the rules, on usual probation for a period of one year; with effect from 25-6-1994 against the post as noted against each:--- (1)Dr. Muhammad Shafiq,Professor, Departmentof Department ofIslamiyat,Islamiyat (post vacated by Dr. S. University of Peshawar.Saeedullah Jan) (conditional to the fact that he will not leave abroad for at least five years).
(2) Mr. Abdul Jabbar Khalil,Professor, Department of Pashto Department of Pashto,(post vacated by Mr. Ghamme University of Peshawar.Jan Pareshan Khattak on his retirement).
(3)Mrs. Chand Rehman,Professor, Departmentof Department of English,English (post vacated by Daud University of Peshawar.Kamal due to his death).
(4)Mrs. MunawarRauf,Professor, Department of Urdu Department of Urdu;(post vacated by Dr. A. S. Johar University of Peshawar.Paracha on his retirement).
The Syndicate while considering the above recommendation of the Selection Board observed that the following candidates who also appeared before the Selection Board deserve appointment as Professor. The Syndicate, therefore, decided to appoint the following as Professors in BPS-20 (Rs.9195-440-13595) plus usual allowances admissible under the rules on usual probation for a period of one year with effect from 25-6-1994 by transferring the posts of Professor from the Department and existing vacant post of Professor as noted against each:---
(1) Dr. Jamila Suddal, DepartmentProfessor Department of of Islamiyat, University ofIslamiyat against the post of Peshawar.Professor in the Department of Arabic which stands transferred to the Department of Islamiyat from 25-6-1994.
(2) Mrs. Waheeda Ghafoor,Professor, Department of Urdu Department of Urdu,against the post transferred University of Peshawar.from Persian Department: vide Office Order No.357/Estt. dated 26-2-1994.
(3) Dr. Qabil Khan, Department ofProfessor, Departmentof English, University ofEnglish post vacated by Dr. S. Peshawre.Aurangzeb Shah on his retirement.
(4) Dr. Muhammad Arsala Khan,Professor, Departmentof Department of Chemistry,Chemistry against the post of University of Peshawar.Professor stands transferred frorr.
Department of Environmental Planning and Management w.e.f.
25-6-1994 (to be re-transferred to parent Department as and when it becomes available in Chemistry Department).
(5) Dr.HaroonRashid,Professor, Department of Department of Chemistry,Chemistry: post of professor University of Peshawar.stands transferred from Persian Department with effect from 25-6-1994 (to be re-transferred to parent Department as and when it becomes available in Chemistry Department.
This issues with the approval of the competent authority.
REGISTRAR, UNIVERSITY OF PESHAWAR
9. Pursuant to the above office order charge of the post of Professor in the Department of Urdu.
Was assumed by the petitioner. However, in the 349th meeting of the Syndicate the appointments made through the said office order were subjected to scathing criticism by some of the members on which it was decided that all the adjustment cases being not in conformity with the rules and regulations shall be referred back to the Selection Board for reconsideration and. In the light of that decision the impugned order was issued whereby the petitioner's appointment as Professor in the Department of Urdu was struck down.
10. The decision of the Syndicate on which the impugned order was based was certainly well- intentioned but it did not squarely apply to the petitioner inasmuch as she was appointed op the recommendation of the Selection Board and as such her appointment was not a case of adjustment in strict sense of the expression. The observations made in the Office Order No. 1134/Estt. Dated 3-8-1994 that "The Syndicate while considering the above recommendation of the Selection Board observed that the following candidates who also appeared before the Selection Board deserve appointment as Professor" give the impression as if the petitioner had only appeared before the Selection Board and was not formally recommended for appointment against the post transferred from the Department of Persian. These observations are not in consonance with the minutes of the 345th Meeting of the Syndicate held on 25-6-1994 the relevant portion of which reads as under:--- "The rest of the recommendations of the Selection Board was approved as follows, on the usual terms and conditions:--- S. No. Name of appointee
36. (i) Mrs. Munawar Rauf
(ii) Mrs.Waheeda GhafoorPost/Deytt.
Professor in Urdu, University of Peshawar.
Professor in Urdu Department, University of PeshawarRemarks Against presently advertised post and processed through Selection Board Against the vacant post of a Professor transferred from Persian. "
Be that as it may, the impugned order is exceptionable even if the appointment of the petitioner is lumped with the adjustment cases because the decision of the Syndicate in regard to her appointment had become irreversible for the reasons that it had already been implemented in letter and spirit and having worked against the post of Professor transferred from the Department of Persian for seven months she had acquired a vested right to hold it till its re-transfer to the Department of Persian or her removal in accordance with the prescribed mariner.
For the foregoing reasons this writ petition is accepted and the impugned order is declared to be without lawful authority and of no legal effect. No order as to costs.